Schicke v. Romney, 283

• Decision Date: 20 February 1973
• Docket Number: Docket 72-1849.,No. 283,283
• Citation: 474 F.2d 309
• Parties: Charles A. SCHICKE et al., Appellants, v. George ROMNEY, Secretary of Housing and Urban Development, and City of Norwalk, Appellees.
• Court: U.S. Court of Appeals — Second Circuit

474 F.2d 309 (1973)

Charles A. SCHICKE et al., Appellants, v. George ROMNEY, Secretary of Housing and Urban Development, and City of Norwalk, Appellees.

No. 283, Docket 72-1849.

United States Court of Appeals, Second Circuit.

Argued December 8, 1972.

Decided February 20, 1973.

John Keogh, Jr., Norwalk, Conn. (John A. Mottalini and Keogh, Candee & Burkhart, Norwalk, Conn., on the brief), for appellants.

Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D. C. (Harlington Wood, Jr., Asst. Atty. Gen., and Walter H. Fleischer, Atty., Washington, D. C., Stewart H. Jones, U. S. Atty., for the D. Conn., on the brief), for appellees.

Before LUMBARD, SMITH and MANSFIELD, Circuit Judges.

LUMBARD, Circuit Judge:

This is an appeal from an order of the District Court of Connecticut, reported at 346 F.Supp. 417 (D.Conn.1972), granting summary judgment in favor of defendant George Romney, Secretary of Housing and Urban Development (HUD),¹ and the City of Norwalk, and dismissing this suit for declaratory and injunctive relief by 48 residents of the City of Norwalk, Connecticut. Prior to granting summary judgment, Chief Judge Blumenfeld also granted Secretary Romney's motion for a protective order prohibiting the taking of his deposition by the plaintiffs. Plaintiffs had brought suit seeking a declaratory judgment that the approval by Secretary Romney of the conversion of 43 acres of property, originally acquired by the City of Norwalk as parkland under the Open-Space Land Program of the Housing Act of 1961, as amended, 42 U.S.C. §§ 1500-1500e (1964 ed., Supp. V), to use as the site for the Norwalk Community College was illegal and invalid. They also had sought to enjoin the Secretary from approving the city's pending application for the conversion of 14 additional acres to be used for the same purpose and to enjoin the city from conveying any portion of the land in question to the state.² For the reasons stated below, we reverse and remand to the district court for further proceedings not inconsistent with this opinion.

I

In November 1965 the City of Norwalk, at a total cost of $1.5 million, acquired for use as a park approximately 196 acres of land, known as the Gallaher Estate, situated partly in the northeastern portion of Norwalk and partly in the adjoining town of Wilton. The federal government, pursuant to the Open-Space Land provisions of the Housing Act of 1961, as amended, reimbursed the City for one-half of the purchase price, or $750,000. Under the Act the Secretary of HUD is authorized to make grants to states and local public bodies of up to 50% of the total cost of acquiring and developing permanent open-space land.³ The state of Connecticut, under its own open-space program, paid $375,000 or 25% of the cost, while the City of Norwalk paid the remaining 25%.

In 1967 Norwalk initiated plans to withdraw 57 acres of this property from open-space designation so that it could be used as the site for the Norwalk Community College.⁴ The City wished to substitute 29.9 acres of property, known as the Taylor Farm, located approximately six miles from the Gallaher Estate and adjacent to the Norwalk public beach on Long Island Sound. Section 1500c of the statute permits the conversion of open-space land to other uses with the approval of the Secretary of HUD, if he finds that certain conditions are met.⁵ The section specifies that approval shall not be given unless (1) the conversion is "essential to the orderly development and growth of the urban area involved"; (2) the conversion is "in accord with the then applicable comprehensive plan" for the area; (3) "open-space land of at least equal fair market value" is substituted for the converted land; and (4) open-space land of "as nearly as feasible equivalent usefulness and location" is substituted.⁶

Pursuant to these provisions the Secretary, on November 10, 1969, approved the conversion of 42 acres of the Gallaher property and the substitution of the Taylor Farm. An application to convert 14 additional acres is still pending.⁷

II

The plaintiffs, all of whom own property in close proximity to the Gallaher Estate, started suit on behalf of all residents, property owners, and taxpayers in the northeastern part of the City of Norwalk against the City and the federal government to invalidate the conversion of the Gallaher Estate and the substitution of the Taylor Farm.⁸ They contend (1) that Secretary Romney did not personally make the four determinations required by § 1500c before he approved the conversion of the open-space land in question; (2) that he did not consider all relevant factors when making the findings necessary to his decision, including, inter alia, the finding that the conversion was in accord with the Norwalk "comprehensive plan"; and (3) that his decision approving the conversion was arbitrary, capricious, an abuse of discretion, and not in accordance with law. 5 U.S.C. § 706(2) (A) (1964 ed., Supp. V). See Schicke v. United States, 346 F.Supp. 417, 419-420 (D.Conn. 1972). They also claim that the Secretary and the City of Norwalk acted in bad faith.⁹

On May 25, 1971, the District Court denied the Secretary's motion to dismiss the action for lack of jurisdiction over the subject matter and failure to state a claim on which relief can be granted. In light of the Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the court at the same time reserved decision on the Secretary's motion for summary judgment in order to allow the parties additional time to submit any further material which might be relevant to the consideration of the motion.

On October 7, 1971, Judge Blumenfeld again postponed decision on the federal defendant's motion for summary judgment because of the apparent incompleteness of the administrative record filed with the court. However, on November 24, 1971, on the basis of the entire administrative record which was then before him, he denied the motion for summary judgment. He found that the record was not adequate for reviewing the Secretary's decision because the Secretary had failed to make any formal findings.

On January 24, 1972, the Secretary filed formal findings with the court and renewed the motion for summary judgment. The findings consisted of a "Determination of the Secretary upon Application for Conversion of Open Space Land Pursuant to § 704 of the Housing Act of 1961," dated January 11, 1972, which stated that the Secretary had made the necessary findings when he originally gave his approval of the conversion more than two years before, and named the portions of the administrative record on which he had relied. On the basis of the Secretary's motion and supporting evidence the City of Norwalk, on February 3, 1972, also moved for summary judgment.

In order to oppose the Secretary's motion, the plaintiffs, on February 3, 1972, filed a notice of deposition of Secretary Romney. Thereafter, the Secretary moved for a protective order prohibiting the taking of his deposition. Although the plaintiffs formally objected to the district court hearing the motion for a protective order and the motions for summary judgment at the same time, the motions were argued together on April 14, 1972. In an opinion, dated May 3, 1972, the district court granted Secretary Romney's motion for a protective order, granted his motion for summary judgment, and granted the City of Norwalk's motion for summary judgment.

Subsequently, the plaintiffs made a motion to reargue based on newly discovered evidence.¹⁰ This motion was denied and final judgment was entered dismissing the action on June 14, 1972.

III

Appellants claim on appeal that the district court's grant of summary judgment cannot stand because the district court should not have granted Secretary Romney's motion for a protective order. Appellants allege that in denying them the opportunity to depose Secretary Romney, the district court deprived them of the information in the Secretary's possession that was necessary to oppose effectively the motions for summary judgment. Cf. Subin v. Goldsmith, 224 F.2d 753, 760 (2d Cir. 1955).

Appellants also contend that even on the record as it now stands, the district court was incorrect in granting summary judgment because there already exist several genuine issues of material fact. F.R.Civ.P. 56(c). For example, appellants assert that the Secretary's "Determination," dated January 11, 1972, leaves unclear whether the Secretary personally made the four required findings. Since the authority to approve conversion of open-space land to other uses had not been delegated, the Secretary was obliged personally to approve this conversion. See 31 Fed.Reg. 7358 (1966). Appellants urge that a letter, dated December 2, 1969, sent to a member of the family of one of the plaintiffs by Harrison Knapp, Director of the Community Relations Division of the Department of Housing and Urban Development, contains the implication that the Secretary did not make the findings himself.¹¹

Appellants further contend that, considering the administrative record and the Secretary's formal findings, there are genuine issues of material fact about whether the Secretary made each of the four required findings on the basis of all of the relevant factors. Appellants assert (1) that the Secretary, in reaching his conclusion that the proposed conversion was "essential to the orderly development and growth of the urban area involved," may have relied on a non-existent State of Connecticut requirement that Community Colleges must have a campus of at least 100 acres; (2) that the Secretary had no way in which to verify that the conversion was "in accord with the then applicable comprehensive plan," since Norwalk's comprehensive plan was not included in the administrative record; (3) that the Secretary could not make an accurate finding that the substituted open-space land was of equivalent...